appellate-level court, including this court in Richardson Estate.
He noted, at paras. 46-47, that his difficulty with Roberts is that
it made no reference to Soulos, which had not invited judges to
impose constructive trusts “whenever and wherever they believe
justice requires”.

[264] In Milne Estate, the deceased husband disobeyed a court
order requiring him to maintain a life insurance policy with the
wife as beneficiary. Instead, he designated his new partner. The
court followed Ladner and found no basis for a remedial constructive trust based on breach of fiduciary duty, as there was
no such relationship between the spouses. Instead, he granted
judgment against the estate for the full value of the policy.

Analysis

[265] The disappointed beneficiary cases utilize the rubric of
unjust enrichment but gloss over the structural difference. This
approach exemplifies the common law’s inclination to use old
tools for new tasks, even if they do not quite fit. We will always
be feeling our way. As McLachlin J. noted in Soulos, at para. 35:
“The goal is but a reasoned, incremental development of the law
on a case-by-case basis.” That method is part of the genius of the
common law.

[266] In managing the deployment of remedial constructive
trusts in aid of good conscience, the discipline of particularity is
important, as McLachlin J. noted. To repeat her words, in
para. 35 of Soulos: “Particularity is found in the situations in
which judges in the past have found constructive trusts.” She
noted: “A judge faced with a claim for a constructive trust will
have regard not merely to what might seem ‘fair’ in a general
sense, but to other situations where courts have found a constructive trust.” She saw this careful approach as essential to
“a reasoned, incremental development of the law on a case-by-case basis”.

[267] I recapitulate the findings that must be made for a court
to impose a constructive trust on life insurance proceeds, which
have emerged so far in the cases involving disappointed beneficiaries. These serve as limits to discipline judicial discretion.
First, the defendant has been enriched and the plaintiff deprived
in a family context, not in the market world. Second, the
deceased’s ruling intent, before resiling, was to benefit the plaintiff. That intent can be found in an oral agreement, a separation
agreement or in a court order, but it must comprise an obligation. Third, there is a proprietary link between the plaintiff and
the life insurance proceeds. It is this life insurance policy that is
in issue, not some other. Finally, providing the plaintiff with the